According to criminal justice expert and University of Chicago professor William Baude, “The doctrine of qualified immunity prevents government agents from being held personally liable for constitutional violations unless the violation was of ‘clearly established law.’”

Unfortunately, this doctrine has resulted in a lack of accountability for prison and jail officials who engage in misconduct, Baude said in his article, “Is Qualified Immunity Unlawful?,” published in the California Law Review in February 2018.

Prison employees can be negligent in the performance of their duties, even to the point of being reckless, and still escape responsibility when sued. Qualified immunity is often justified as shielding government employees from the threat of litigation when they were unaware that their actions or inactions were unconstitutional.

In Texas, a federal appellate court issued an opinion in the case of Ezmerelda Rivera, who was sexually assaulted in 2014 after being arrested for public intoxication and taken to the Hale County Jail. There, guard Manuel Fierros took her to a room without surveillance cameras, where he had Rivera repeatedly perform oral sex on him. Rivera filed a complaint with the Texas Rangers; Fierros promptly confessed his crime and later received three years’ probation.

Rivera then filed a federal civil rights action against Fierros and jail officials, and her attorneys discovered the guard had previously been arrested when he was a juvenile for “indecency with a child by sexual conduct.” Nonetheless, the defendants moved to dismiss the case, claiming qualified immunity shielded them from liability. The district court agreed and the Fifth Circuit Court of Appeals affirmed.

Once defendants raise qualified immunity as an affirmative defense, the burden of proof shifts to the plaintiff to show the defendants’ actions or inactions were in violation of clearly established law.

The minimal amount of training that Fierros had received at the jail, despite his arrest for a sexual offense before he was hired, was considered enough to dismiss Rivera’s claim of inadequate training.

The Fifth Circuit cited cases where police or prison supervisors were not held liable even though a “reasonable” person could conclude they had been “deliberately indifferent” in their hiring decisions. In spite of the fact that Fierros had a history of sexual abuse, “under the specific circumstances of this case, the connection between Fierros’s prior arrests and the injury to Rivera is not strong enough to show that [the defendants] were deliberately indifferent in hiring him,” the appellate court wrote. See: Rivera v. Bonner, 691 Fed.Appx. 234 (5th Cir. 2017).

University of Texas Law School professor Jennifer E. Laurin noted that starting in 1987, the U.S. Supreme Court’s policy was to encourage lower courts to apply qualified immunity “in a way that takes account of the very particular facts facing officials” – which created little motivation for prison and jail staff to modify their policies or take precautions to avoid staff misconduct “that courts have not yet considered.” Laurin added that “Even though the judges made very unfavorable comments about the defendants’ decisions, it is still not clear – for the next defendants – whether this is unconstitutional.”

David Fathi, director of the ACLU’s National Prison Project, agreed, stating the qualified immunity doctrine “has expanded beyond all recognition, and now it regularly allows malicious and sadistic conduct to go unpunished. [In many cases] defendants were given qualified immunity even for conduct that was clearly unconstitutional.”

“To me, qualified immunity is an oxymoron,” said former jailhouse lawyer Derrick Hamilton. “Correction departments get a big budget. Part of their budget is to train their staff.... How can a lawyer say their client didn’t know that a new rule exists? It’s unthinkable that they could make that claim.”

According to The Marshall Project, a nonprofit news organization that reports on criminal justice-related issues, “Officials can act negligently, even recklessly, toward those in their care without having to pay a price for it. Immunity today is construed so broadly that it can shield from financial responsibility those who engage in egregious behavior.”

Judge Rosemary S. Pooler, who sits on the Second Circuit Court of Appeals, concurred in her critique of a grant of qualified immunity in a case involving a prisoner who was placed in administrative segregation.

“I do not see how these conditions were materially different from loading [him] with chains and shackles and throwing him in a dungeon. In light of the lack of legitimate government interest in instituting those conditions, I would not afford the defendants qualified immunity,” she wrote in a November 22, 2017 dissent.

That case involved a Connecticut prisoner who was placed in ad seg after he asked to speak with a lieutenant, remained in segregation until he was released, then returned to segregation when he was later re-incarcerated. The Second Circuit held the prisoner’s due process rights had been violated but the defendants were entitled to qualified immunity. See: Allah v. Milling, 876 F.3d 48 (2d Cir. 2017).

It is clearly time for the Supreme Court to reconsider its precedent in support of qualified immunity, considering how that doctrine has been abused in civil rights cases involving prisons, jails and other detention facilities.